The State v. Salmon

• Decision Date: 02 February 1909
• Parties: THE STATE v. HARVEY W. SALMON, Appellant
• Court: Missouri Supreme Court

115 S.W. 1106

216 Mo. 466

THE STATE v. HARVEY W. SALMON, Appellant

Supreme Court of Missouri, Second Division

February 2, 1909

Appeal from Benton Circuit Court. -- Hon. C. A. Denton, Judge.

Reversed and remanded (with directions).

J. D Lindsay and W. M. Williams for appellant.

(1) The court erred in overruling the plea in abatement to the indictment. (a) It stands admitted by the answer to the plea that a stenographer, who was not a member of the grand jury was present in the grand jury room, by the express direction of the court, and at the request of the prosecuting attorney and the grand jury, and took notes in shorthand of the testimony of the witnesses then being examined in reference to the charge against the defendant, and which resulted in returning the indictment against him. The whole framework of the grand jury's organization, and the safeguards of secrecy thrown around its deliberations, exclude the idea that anyone, other than those permitted by statute, may participate in its proceedings or be present during the consideration of matters coming before it. It was a palpable violation of the statute for the court to direct an outsider to remain in the grand jury room, and it cannot be said in this case that the error was harmless. There is no such admission in the pleadings. State v. Sullivan, 110 Mo.App. 75; State v. Brown, 38 A. 331; Com. v Berry, 92 S.W. 936; State v. Watson, 34 La. Ann. 669; Wilson v. State, 13 So. 225; United States v. Edgarton, 80 F. 374; Lewis v. Com., 74 N.C. 194. (b) The grand jury was in session fifteen days. The plea in abatement alleged that after the witnesses had testified and while the jurors were considering the charge against the defendant, the stenographer was called upon to read her notes of the testimony for their information, to the great prejudice of the defendant. The statute contemplates that the jurors shall make their presentments upon their own recollection of the testimony, and not upon unauthorized notes taken by an outsider, acting without the sanction of any official oath, and without legal authority. This case is much stronger than where a stenographer simply took notes of the testimony to be subsequently transcribed for the use of the prosecuting officer. It is not harmless to permit a grand jury, in finding an indictment, to rely, in whole or in part, upon an unauthorized statement by an outsider undertaking to give the testimony relating to the charge. State v. Thomas, 99 Mo. 261; State v. Sullivan, 110 Mo.App. 83; United States v. Kilpatrick, 16 F. 675. (c) The stenographer was a competent witness to prove the facts stated in the plea in abatement. She was not asked concerning anything that took place while she was before the grand jury as a witness; but concerning her actions while she was there unlawfully in the capacity of a stenographer. State v. Grady, 12 Mo.App. 361; State v. Grady, 84 Mo. 220; State v. Cole, 145 Mo. 672. (2) Evidence of assent to the deposit of a check is insufficient to support a charge of an assent to a deposit of money. R. S. 1889, sec. 1945; State v. Mispagel, 207 Mo. 557; Lory v. People, 229 Ill. 268; Carr v. State (Ala.), 16 So. 155; Lewis v. State (Tex.), 12 S.W. 736; Thalheim v. State (Fla.), 20 So. 938; Otero v. State (Tex.), 17 S.W. 1081; Com. v. Howe, 132 Mass. 250; Alston v. State, 92 Ala. 128. (3) It was error to permit the prosecuting witness to testify to the contents of the check in the absence of evidence showing its loss or destruction, or the inability of the prosecution to produce the paper itself. Morton v. Heidorn, 135 Mo. 608; Oconnell v. Nicholson, 67 Mo.App. 657; Lewin v. Dille, 17 Mo. 64. (4) The court erred in permitting to be read in evidence against the defendant the reports made by the Bank Examiners to the Secretary of State in the year 1895 and subsequent thereto. It was not shown that defendant had any knowledge of the contents of these reports. They were statements made up by the Bank Examiners of the result of their investigations as to the condition of the bank and mere hearsay so far as defendant was concerned. (5) The seventh instruction improperly told the jury that it was defendant's duty, as a member of the firm of Salmon & Salmon, to know the financial condition of said bank at all times, and that the law presumes that he did know it. This practically eliminated the defense of want of knowledge of the insolvency of the bank or of its failing condition. Wakeman v. Dolly, 51 N.Y. 27; Murray v. Lumber Co., 9 N.E. 634; Pier v. Hanmore, 86 N.Y. 102; Stebbins v. Edmands, 78 Mass. 203; Briggs v. Spaulding, 141 U.S. 132; State v. Myers, 38 P. 299. (6) The third instruction, telling the jury that the failure of the Bank of Salmon & Salmon on the 20th of June, 1905, was prima-facie evidence that defendant had knowledge of its failing circumstances on the second of June, 1905, was erroneous. (a) Under the statute, as amended in 1895, now section 1945, to constitute the offense by a private banker, "the owner or owners" of such private bank must be known to be insolvent or in failing circumstances. The bank cannot be insolvent unless the owners are. Roby v. State, 51 S.W. 1114; State v. Caldwell, 44 N.W. 700; Meadowcroft v. People, 45 N.E. 307; State v. Krasner, 83 N.E. 498. (b) The statute does not declare that the failure of a private bank shall be primafacie evidence of knowledge that the "owner or owners" were insolvent or in failing circumstances when the money or property was received on deposit. The statute as to prima-facie case is confined by its terms to incorporated banks or banking institutions. R. S. 1899, sec. 1945; Roby v. State, 51 S.W. 1114; State v. Kelsey, 89 Mo. 623. (7) (a) The court, having given instruction 5, at the instance of the State, upon circumstantial evidence, committed error in refusing 5, asked by defendant, informing the jury of the character of circumstantial evidence necessary to authorize a conviction. State v. Sasseen, 75 Mo.App. 203; State v. Woodward, 111 Mo. 256; State v. Moxley, 102 Mo. 388; State v. Crone, 209 Mo. 331. (b) Instruction 8 was a comment upon the evidence and should not have been given. State v. Sivils, 105 Mo. 530; State v. Homes, 17 Mo. 379. (c) Defendant could not be convicted on the ground of negligence in failing to examine the books of the bank to ascertain its condition, and, under the evidence, instruction 3, asked by him, should have been given. Utley v. Hill, 155 Mo. 264; State v. Tomblin, 48 P. 144. (8) The verdict of the jury is not sufficient to sustain the judgment. Where the jury makes a special finding all the elements necessary to constitute the offense must be included in the verdict. State v. Modlin, 197 Mo. 376; State v. Cronin, 189 Mo. 663; State v. Pollock, 105 Mo.App. 278; People v. Cummings, 49 P. 576; Holmes v. State, 78 N.W. 642. (9) The demurrer to the evidence should have been sustained and defendant discharged, for the more important and better reason that the evidence was wholly insufficient to sustain the charges. The testimony entirely failed to show knowledge by defendant at the time of the deposit of the insolvent or failing condition of Salmon & Salmon. Wiley v. Hill, 155 Mo. 264; State v. Tomlin, 48 P. 144; State v. Dunning, 107 N.W. 927; State v. Wells, 134 Mo. 238. (10) This court will order the reversal of a judgment and the discharge of a defendant when the evidence is insufficient to justify or support a conviction. State v. Gordon, 199 Mo. 561; State v. Morney, 196 Mo. 43.

Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.

(1) That a stenographer, not a member of the grand jury, was present in the grand jury room, taking in shorthand the testimony of witnesses, or reading to the grand jurors such testimony when transcribed, or furnishing a copy to the prosecuting attorney of such testimony, was not sufficient ground to invalidate the indictment. The law requires that to have such effect, it must be alleged in the plea and shown by the evidence that the defendant was prejudiced by reason of such facts. R. S. 1899, sec. 2535; State v. Sullivan, 110 Mo.App. 75; State v. Bates, 148 Ind. 610; State v. Brewster (Vt.), 42 L. R. A. 444; State v. Miller, 95 Iowa 368; Shattuck v. State, 11 Ind. 473; Courtney v. State, 5 Ind.App. 356; State v. Clough, 49 Me. 575; State v. Kimball, 29 Iowa 267; Bennett v. State, 62 Ark. 516. On the hearing of the plea in abatement no attempt was made to show that the presence of the stenographer tended to prejudice the rights of the defendant. The defendant offered to prove that the stenographer was called upon by the grand jury to read from her notes as to what the testimony of the witnesses was, and that she did read her notes of their testimony. State v. Bates, supra. By Sec. 2495, R. S. 1899, the grand jury is authorized to appoint one of their number a clerk to preserve the evidence given before them. That is precisely what the grand jury did in this case, except that the stenographer was not a member of the grand jury. In the offer of proof made by defendant in this case, it was not claimed that the stenographer was guilty of any fraud in taking down the testimony or in reading the same to the grand jury, or that there was anything in her conduct that in any manner prejudiced the rights of the defendant. It is shown by the evidence that the stenographer was sworn as a witness, took the statutory oath of secrecy and testified as a witness before the grand jury. She was, therefore, incompetent to testify on the hearing of the plea in abatement as to any fact or thing which came to her knowledge while before that body. R. S. 1899, sec. 2490. But as defendant made an offer of proof as to her testimony and no prejudice was shown to the defendant...